Where Justice Anthony Kennedy signaled a desire in Tuesday's proceedings to wait for the sociological evidence and popular perspective to settle before making a decision on the topic of gay marriage, it's worth looking back on the notable shift in sentiment toward same sex marriage.
The topic was a wedge issue in 2008, driving many to the polls for ballot initiatives. A few far-seeing politicians offered only tepid uncertainty on gay rights, while many more candidates and incumbents openly opposed reform, often making homophobic slurs without reproach.
That's not the world we live in now.
Today, Proposition 8 and the Defense of Marriage Act are being opposed in the highest court of the land, with Court watchers optimistic for those in favor of gay marriage. Not only is it more acceptable for a politician to “come out” in support of gay rights, but many mainstream Republicans are joining the call for equal justice. It would seem that the country has come farther to what is conventionally deemed the left, at least on this issue.
And yet, for all the progress made on gay rights, it's important to recognize that the campaign for gay marriage is an inherently conservative project for reform. But neither are opponents of gay marriage willing to accept this, nor are they willing to budge from the position that this is the most radical reform we've seen to date from the left-wing. Same sex marriage, along with other topics we tend to think of as “social topics,” draw an interesting ire from conservatives. On the one hand, you would expect the party championing deregulation and free trade and lower taxes to be in favor of greater freedom. Gay marriage is justifiably a project to secure freedom for same sex couples — the freedom to marry.
Listen to the protesters. Advocates for gay marriage are not criticizing marriage. They aren't out on the streets belittling the institutional bond by way of picket signs. Supporters of gay marriage don't want marriage “as we know it” to wither away into historical romanticism. If anything, gay rights advocates are in favor of sustaining marriage, for others, as well as themselves.
Gay marriage is a conservative project precisely because it supports marriage. Same sex couples are seeking to join — and thereby reinforce by their inclusion — the institution of traditional marriage. This campaign endorses the normative culture surrounding the makeup of marriage, where a far more radical project would be to question the expectation and structure of marriage itself. To end marriage in favor of a system of benefits given equally to those in and out of formalized relationships. But that's not what advocates are asking for, and that's certainly not what this week's Supreme Court hearings have been about. But don't hold your breath for an ideological embrace of gay marriage from traditionalists. Til' death do some ideas part.